Max Newlin v. State of Montana

MAX NEWLIN, PETITIONER AND APPELLANT,v.STATE OF MONTANA, ON BEHALF OF THE DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, DRIVER IMPROVEMENT BUREAU, RESPONDENT AND APPELLEE.

APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DV 12-08 Honorable Blair Jones, Presiding Judge

The opinion of the court was delivered by: Laurie McKINNON

Submitted on Briefs: February 20, 2013

Decided: March 12, 2013

Filed:

Clerk

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Max Newlin appeals from an order of the Twenty-Second Judicial District Court, Carbon County, denying his Amended Petition for Judicial Review of License Suspension. The District Court orally denied the amended petition on March 22, 2012, at the conclusion of an evidentiary hearing. Thereafter, on June 27, the District Court entered its written Findings of Fact, Conclusions of Law, and Order. Newlin filed his Notice of Appeal on July 18.

¶3 On January 22, 2012, Red Lodge City Police Officer Matthew Grieshop was driving a marked patrol vehicle southbound on Highway 212 near Red Lodge, Montana. Grieshop was on duty and in uniform. Highway 212 is a public highway of the State and is a designated snow-removal route. That evening, it was clear and very cold, and there was snow on the shoulders of the highway.

¶4 At approximately 12:47 a.m., Grieshop observed a vehicle pulled over on the side of the highway. Two of the vehicle's wheels were in the snow along the shoulder. Grieshop was concerned for the safety of the motorists, as the vehicle had pulled over on an unsafe portion of the road. The vehicle, although partially off the roadway, still presented a possible road hazard and potential obstruction to snow-removal equipment. There was little traffic at the time, and the homes in the immediate vicinity, many of which are seasonal or vacation homes, appeared unoccupied or inactive. Given the time, the weather, and the location of the vehicle, Grieshop was concerned for the well-being of the vehicle's occupants and concerned that he may need to offer assistance to the driver or others in the vehicle.

¶5 The darkness prevented Grieshop from ascertaining, without stopping his patrol car and approaching the parked vehicle, whether assistance was needed. Grieshop, therefore, pulled up to the vehicle and activated his patrol vehicle lights for safety reasons. Grieshop exited his patrol car and approached the vehicle. Upon establishing contact with the driver (Newlin), Grieshop first asked "if everything was okay." Grieshop immediately detected the odor of an alcoholic beverage and requested that Newlin submit to a preliminary alcohol screening test. Newlin refused, and Grieshop then seized his driver's license. See § 61-8-402(4), MCA.

¶6 Newlin does not dispute that particularized suspicion to conduct a DUI investigation developed once Grieshop made contact with him. Newlin contends, rather, that there was an insufficient legal basis for his initial encounter with Grieshop. Newlin specifically raises the following issue on appeal: Did the District Court correctly apply the community caretaker doctrine in denying Newlin's amended petition to reinstate his driver's license?

¶7 We review a district court's ruling on a petition for reinstatement of a driver's license and driving privileges to determine whether the court's findings of fact were clearly erroneous and its conclusions of law correct. Weer v. State, 2010 MT 232, ¶ 7, 358 Mont. 130, 244 P.3d 311. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if a review of the record leaves this Court with a definite and firm conviction that a mistake has been made. State v. Hurlbert, 2009 MT 221, ¶ 16, 351 Mont. 316, 211 P.3d 869.

¶8 The issues to be determined by a district court in a hearing for reinstatement of a driver's license and ...

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